[Crl. Appeal No. 1678 of 2013 arising out of S.L.P.(Crl.)No.1387 of 2012]

VIKRAMAJIT SEN, J.

1. Leave granted. The Appellant had reported to the Chauki-in- charge, Sheikpura Kadi, P.S. Kotwali Dehat, Saharanpur, U.P. that on 13/14.3.2011 Respondent no.2, namely, Kunwar Singh and other co- accused had cut the ridge of his field on 12.3.2011 which resulted in an altercation between them at 7.00 a.m. on 13.3.2011. Five other persons, namely, Rafal Singh, Issam Singh, Shahspal, Hanish @ Hanif @ Awanish and Pillu @ Ravindra were already present at the site; Kunwar Singh and Rafal Singh were armed with Balkati and the others with lathis. The six persons allegedly attacked the Appellant, his sons, namely, Sanjay and Baliram and his grandson Udaiveer all of whom suffered serious injuries.

All of them stand charged under Sections 147, 148, 149, 323, 325, 302 I.P.C. Sanjay (deceased) suffered the following injuries: "(i) Multiple LW 8 x 4 cm top of head into bone deep 12 cm above (eligible) root of nose CTs 6 x 8 cm. (ii) IW 6 x 6 cm into bone deep rt side head 7 cm above rt ear K/W." According to the Medical Report Injury no.(i) has been caused by hard and blunt object and Injury no.(ii) by sharp edged object. Although Respondent no.2 Kunwar Singh has set up an alibi, it is not in dispute that it was he who had taken the members of his group to the hospital on that fateful day itself. Eventually, he was granted bail by the impugned Order in respect of Case Crime No.29/119 of 2011 registered for offences punishable under Sections 147, 148, 149, 323, 325, 302, I.P.C. P.S. Kotwali Dehat, District Saharanpur.

2. On the other hand, the Additional Sessions Judge, Saharanpur, had prior thereto noted that Kunwar Singh had been named in the FIR, along with a specific role. The learned Addl. Sessions Judge was obviously influenced by the fact that injuries on Sanjay (deceased) were on vital part of the body, i.e., the head; that on the indication of Kunwar Singh, the Balkati was recovered from a sugarcane field and that the unrebutted case is that Kunwar Singh was involved in a number of cases including four shown pending in the Gang Chart including one for murder and another for rape. In the view of the Additional Sessions Judge, Saharanpur, these were sufficient reasons to decline bail as transpires from his Order dated 20.5.2011.

3. The learned Additional Govt. Advocate had submitted to the High Court, and the learned Addl. Advocate General for the State of U.P. has similarly pressed before us, that the Applicant-Respondent no.2 was armed with the reaping hook (Balkati) and the deceased had sustained Injury no.2 allegedly by this weapon. Moreover Respondent no.2 is involved in several criminal cases and that if he is released on bail, he is likely to tamper with evidence. Learned Counsel for Respondent no.2 has contended that all the cases in which Respondent no.2 has been named, he has been acquitted in two and has been released on bail in the third.

The High Court was impressed with the view that the occurrence has taken place in a sudden quarrel and, therefore, there was no "pre- intention" or pre-meditation; that it has not been specified as to whose blow caused the incised wound being Injury no.2; that it was difficult to decide which party was the aggressor; that Respondent no.2, the Applicant before the High Court, was in jail since 25.3.2011. It was in these premises that Kunwar Singh had been granted bail on terms in the impugned Order dated 5.9.2011.

4. In the Counter Affidavit on behalf of the State of U.P., the criminal history of Respondent no.2 is contained in the following table :

S. No.

Crime No.

Sections

Police Station

District

1

29/119/2011

Under Sec.147,148, 149, 323,325, 302 IPC

Kotwali Dehat

Saharanpur

2

295/2006

323, 324, 307,504, 506, IPC

Kotwali Dehat

Saharanpur

3

142/1993

325 IPC

Kotwali Dehat

Saharanpur

4

208/91

342, 323 IPC

Kotwali Dehat

Saharanpur

5

231/2008

447, 353, 504,506, IPC

Kotwali Dehat

Saharanpur

6

571/2011

2/3 Gangster Act

Kotwali Dehat

Saharanpur

7

NCR No.176/2011

504, 506 IPC

Kotwali Dehat

Saharanpur

8

NCR No.37/2012

504, 506 IPC

Kotwali Dehat

Saharanpur

9

Crime Case No.54/12

Sec.3 U.P. Gunda Control Act

Kotwali Dehat

Saharanpur

That apart, it is the asseveration on behalf of the State of U.P. that Respondent no.2 has been tampering with evidence by giving threats to witnesses and that it is palpably evident that in the impugned Order, the High Court had ignored his criminal antecedents as well as the specific role assigned against him in the subject complaint.

5. Keeping the above factors in view, primarily the criminal antecedents of Respondent no.2, we do not think that it is fanciful, unreasonable or irresponsible for the State of U.P. to contend that Respondent no.2 has violated the terms of his bail by threatening or intimidating witnesses. Even in the Affidavit dated 27.6.2013 filed by the Circle Officer, City-II, District Saharanpur, details of as many as ten cases in which Respondent no.2 is involved have been given.

6. In these circumstances, therefore, it was incorrect and imprudent for the High Court to grant bail at least till such time as the examination of the eye witnesses had been completed. The Court should not lose perspective of the fact that intimidation of witnesses is a common occurrence at least as regards persons who have come into conflict with the law on multiple occasions. Accordingly, the impugned Order is set aside and the bail of Respondent no.2 is cancelled. His bail bonds shall stand cancelled and the sureties discharged. He shall be taken into custody forthwith.

8. Leave granted. The Bail Orders dated 3.11.2011 passed by the High Court in favour of Rafal Singh, Shashpal and Hanish @ Hanif @ Awanish have been assailed in this Appeal. Earlier, another Addl. Sessions Judge, Saharanpur had rejected their applications vide Orders dated 14.10.2011. The alleged role ascribed to Rafal Singh is identical in material particulars to that of Kunwar Singh, both of whom allegedly were armed with Balkatis. As per the Affidavit dated 27.6.2013 filed on behalf of the State there are as many as fifteen cases pending against him. We are, therefore, of the opinion that the High Court erred in granting bail to the said Respondent as well. We set aside the Order of the High Court so far as Rafal Singh is concerned. His bail bonds shall stand cancelled and the sureties discharged, and he shall be taken into custody forthwith.

9. So far as Shashpal and Hanish @ Hanif @ Awanish are concerned, it appears that they were not armed with sharp edged weapons but with lathis/dandas. Of course, it is alleged, so far as Sanjay (deceased) is concerned, that he had also suffered from multiple lacerated wounds on the top of his head, for which prima facie Shashpal and Hanish are responsible. The State has not alleged pendency of any previous cases against them and it is also not the prosecution case that these two persons have endeavoured to intimidate or influence witnesses. For these reasons, so far as these two Respondents are concerned, the impugned Order is not interfered with. It is, however, made clear that if they are found to be intimidating or influencing witnesses or tampering with the evidence the bail granted to these respondents shall be liable to be cancelled. It is further made clear that the observations made hereinabove will not affect the Trial which should be conducted on its own merit.